Civil Enforcement (CEL) Defence - Help please

So an update from me, 5 weeks after filing the above defence statement by email I received the directions questionnaire. I completed with the suggested response as per Bargepole advice and stated dates that I could not do in part D4: 15th Dec 2017-2nd Jan 2018. I have now received my Notice of allocation from my local court giving a date and time for the hearing on 19 Dec 2017 when I am due to be away! Brilliant. I guess my options are to ask the court for a new hearing date. Take a day out of my family holiday to get it over and done with or just wait until after the 21st Nov when the hearing fee is due to see if it gets struck out at that time anyway.

I will be very grateful for any help and advice you can give me with putting my witness statement/skeleton argument together nearer to the time. Thank you again for your support!

I have just over 4 weeks till my hearing date but I have to go into hospital next week unexpectedly so need to get cracking on my witness statement so that I can file everything before I go all foggy from drugs and anaesthetic :-)


I am still hoping this will get discontinued but I guess I won't know this until the 11th hour so I will definitely be going after them for my costs if I win as they have acted unreasonably.


Coupon mad - I would be so grateful if you could help me with my witness statement. I have looked at all the posts from Lamilad and Bargepole and Loadsofchildren123 but I am worried because having re-read my first letter to CEL denying the charge, I did actually admit that I was the driver. Now I am kicking myself profusely because I naively thought they would be human beings about it and I only started reading up on this forum once I started getting the ZZPS/Wright Hassle letters.


I will post a copy of my first letter below, and my defence statement is above, only now I am unsure how much of it will be relevant:




Dear Sir or Madam,





Ticket number: XXXXXXXXXXXX


Vehicle registration number: XXXXXXXXX


Alleged incident: 15th September 2016





You issued me with a parking ticket on 12th October 2016 which I received on the 17th October 2016 but I believe it was issued unfairly/unlawfully. I will not be paying your demand for payment for the following reasons:

• After finding a parking space, I left my car to find the machine to pay for a ticket. I could not find a ticket machine but noticed a sign saying you could pay by phone. I tried twice unsuccessfully using the number provided on the sign – There was a technical fault with the line and it was not possible to complete payment. (Phone records enclosed). I returned to my car and drove out of the car park straight away so that I could park elsewhere. I did not continue to do my shopping or stay in the car park for a length of time. From memory I would say that I was there no longer than 8 mins. However you indicated 19 mins on the Parking charge notice which I contest. Would you kindly check your CCTV to see that I stood at the area for several minutes in an attempt to pay and then leaving to park elsewhere.

• The Parking Charge notice to keeper is incorrect:
  The Notice to Keeper failed to meet the obligations of Schedule 4 of the POFA Act 2012 as it arrived late (after 15 days following the alleged parking office).

If you choose to pursue me please be aware that I will not enter into any correspondence and this will be the only letter you will receive from me until you answer the specific points raised in my letter.





Yours faithfully,














XXXXXXXXXX

Thanks so much LoadsofChildren 123. I've just been drafting my witness statement but hadn't seen your advice before so I may need to remove all the POFA stuff. Would you mind taking a look at this first draft anyway and let me know whether you think I should cut it down?




1 DEFENCE
2 WITNESS STATEMENT OF [MY NAME]
3 EXHIBIT IL1 – DEFENDANT DIRECTIONS QUESTIONNAIRE [DQ]


4 EXHIBIT IL2 – DEFENDANT’S REQUEST FOR FURTHER INFORMATION MADE UNDER CPR PART 18
5 EXHIBIT IL3 – POPLA ANNUAL REPORT 2015
6 EXHIBIT IL4 – PROTECTION of FREEDOMS ACT 2012, SCHEDULE 4
7 EXHIBIT IL5 – PARKING EYE SIGN (Re: The Beavis Case)
9 EXHIBIT IL7 – BPA CODE OF PRACTICE
10 EXHIBIT IL8 – BLENHEIM SHOPPING CENTRE CAR PARK SIGN


11 EXHIBIT IL9 – DEFENDANT’S INITIAL CORRESPONDANCE INCLUDING PHONE RECORDS





IN THE COUNTY COURT - Claim No.:

Between

CIVIL ENFORCEMENT LTD (Claimant)

-and-

*********** (Defendant)
____________________________
WITNESS STATEMENT
__________________________






I, ……………………., am the defendant in this case.

1.The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.


2.I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.


3. I am the registered keeper of the vehicle in question in this case.


4. I recall receiving the speculative parking invoice from the claimant but following research online noted that it did not meet the minimum requirements of Notice to Keeper since it was received long after the 14 day deadline for ANPR issued notices under POFA 2012 (Protection of Freedom Act 2012). I appealed on these grounds and never received a response from the claimant.


5. I also stated in this letter that the driver attempted to use the Pay by Phone automated system but that the system failed to complete the payment so the driver was left with no alternative than to leave the car park and park elsewhere. Phone records were supplied to the claimant in support of this. As I heard nothing further for quite some time, I felt vindicated and assumed that the matter was closed.

6. I was then surprised to receive a letter some months later from debt collection company ZZPS. I did some research into why I may have received this since I received no response to my initial letter nor opportunity to appeal to POPLA (Parking on Private Land Appeals)


7. If I had been given the opportunity to appeal to POPLA at that point, POPLA would have had no other option than to have upheld my appeal for the single reason that the NTK was invalid and received long after the deadline for ANPR issued notices.


8. I later found out that Alternative Dispute Resolution in the form of POPLA, can be progressed simply by any British Parking Association AOS member firm providing a code. POPLA place no time restriction on when a POPLA code can be provided, but BPA parking firms unilaterally refuse to provide one in pre-court exchanges, misleading consumers that it is 'too late' and thus wasting valuable court time and that of the presiding judge.

9. I subsequently received several increasingly threatening letters from ZZPS and Wright Hassle. However from researching these 2 companies I had serious concerns about their legitimacy and business practices so did not engage in any correspondence with them. Also, as these were not offences or fines from an Authority like a Council, there was no reason or obligation upon a registered keeper to respond to these letters since these are non-POFA compliant PCNs, incapable of holding Registered keepers liable in law.


10. On 15th June 2017 I received the claim form issued on 12th June2017 which on inspection was not correctly filed under the practice direction as it was not signed by a legal person. I did not receive any Letter before County Court Claim preceding this.


11. Several days later I received the Claim form Particulars from the claimant which were extremely sparse and divulged no cause of action. It is well documented that the claimant and similar parking companies are submitting masses of court claims for old “parking charges” and are inappropriately using the court system as a form of debt collection to ‘scare’ their victims with the threat of CCJs.


12. On 29th June I submitted my defence to the County Court business centre and at the same time mailed a copy to Civil Enforcement Ltd.


13. On 25th August 2017 I submitted my Directions Questionnaire and mailed a copy to Civil Enforcement Ltd along with a preliminary request for further information made under CPR Part 18 (Exhibit IL2)


14. I did not receive a copy of the claimants completed Directions Questionnaire.


15. I did not receive any response from the claimant regarding my request for further information made under CPR Part 18.


16. I did not receive from the claimant any further documentation, photographs, signed contracts or any detailed breakdown of the sum being claimed.


17. I did not receive a copy of the claimants witness statement.


18. I was never shown the alleged signage contract photos (not even the original ‘PCN’ showed the purported signs.


19. I never saw the ‘contract’ they are trying to hold me liable to so based on the vague particulars of claim and being inexperienced in law I can only make assumptions as to what the claim is about and aim to cover them as detailed in my defence statement.


20. The Claimant has failed further to meet their obligations under Civil Procedure Rules:
The usual rule when a Claimant sues under a contract is that it must provide the Defendant with a copy of that contract (Practice Direction 16 paragraph 7.3(1)).
As I understand it, Claimants in proceedings issued via MCOL are exempt from this (Practice Direction 7E paragraph 5.2A) EXCEPT when separate Particulars of Claim are served, as is the case in this Claim.

21. The Claimant is therefore in breach of this aspect of the CPR because it has failed to provide the contract with the Particulars of Claim. The absence of the contract is a serious bar to me providing a proper defence to the claim (the Claimant should have produced a copy of it in the pre-action phase of the proceedings, against both the new Protocol for Debt Claims and the pre-existing Practice Direction - Pre-Action Conduct).

22. The limited information that CEL did provide to me did not contain any evidence of contravention or photographs, nor a copy of the “Letter before County Court Claim” that was supposed to have been sent to me (I did not receive a Letter before County Court Claim), nor a copy of the landowner contract under which they assert authority to operate, nor a copy of the full terms set out in the signage, nor a map showing where the signs were located etc. I understand that these should all have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim properly or to “take stock”, pursuant to paragraph 12 of the Practice Direction.

23. I have set out above CEL’s failures to comply with the CPR. Its failure to comply with the rules put me, an ordinary Litigant in Person, at a significant disadvantage. Given CEL's multiple breaches of the CPR, I ask the court to give consideration, under its inherent case management powers, to strike out the claim. The court's powers to do so are contained in CPR Rule 1.4(2) (c) and Practice Direction 26, paragraph 5.1.


24. If the court is not minded to make an order of its own volition, then the court has the power to treat this as an application rather than asking me to issue a Notice of Application – the power to do this is contained in CPR Part 23.3(2) (b) which provides specifically that the court may dispense with the requirement for an application notice.


25. The court’s powers to strike out a claim are contained in CPR Rule 3.4 and the “test” is if:
(a) the statement of case discloses no reasonable grounds for bringing a claim; or
(b) the statement of case is an abuse of the court’s process; or
(c) there has been a failure to comply with a Rule, Practice Direction or Order.


26. CEL is a commercial Claimant pursuing many other claims of this nature. It must therefore have knowledge of, and understand, the Civil Procedure Rules. These sorts of blatant, and from my researches, routine breaches should not be allowed because they prejudice Litigants in Person, who are not well versed in court procedures and the court rules. It is with some difficulty that I have understood the various obligations and time limits set out in the Civil Procedure Rules, as a Litigant in Person, whereas a commercial Claimant such as CEL has no such excuse.

27. The sign at the entrance to the car park does not explicitly explain that a driver would be entering into a contract by the specific act of parking and neither does it clearly state who that contract would be with. This is contrary to BPA guidance. The sign submitted did not clearly show that there would be a charge of £100 or if it did then this part of the sign is in such small text that it is therefore illegible.

28. The BPA state that signs should be simple and easy to read, and there should be strong colour contrast between text and background recommending black on white as a good example.

29. I submit that Civil Enforcement Ltd do not comply with BPA CoP. The sign showing the possible PCN charge of £100 is hidden in the small print at the bottom of the sign. It is not prominent or obvious and not easy to see by a motorist driving, even very slowly, past the sign.

30. In support of the above 3 points I enclose Exhibit IL7 – the BPA code of practice; and Exhibit IL8 – a sign from the car park in question.

31. The claimant cites Vine vs Waltham Forest LBC [2002] in the mail merged particulars of claim which states that any driver did not have fair opportunity to discover the onerous terms by which they would later be bound.

32. I submit that the case of Vine vs Waltham Forest LBC [2002] supports my case and not the claimant’s.

33. Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently and in far larger lettering.

34. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

35. The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

36. This judgment is binding case law from the Court of Appeal.

37. This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established.


38. Conclusion – no evidence of contravention and the Particulars lack any basis for a claim


39. I also point out to the presiding Judge that the Claimant has not supplied any evidence at all that the alleged contraventions even occurred. ANPR camera photos merely show a vehicle arriving and leaving. All vehicles will have been recorded thus (assuming their VRNs were captured). All vehicles, including those whose drivers payments were completed without technical fault.

40. In order to demonstrate that the driver failed to pay. The Claimant should have evidenced that, of course. As this is an ANPR site, where are the system records showing no payment was made? They have not even responded regarding the failure of their automated telephone payment system or that they had investigated using the phone records supplied whatsoever.

41. A similarly poorly pleaded and evidenced ‘private parking ticket’ claim was struck out by District Judge Cross of St Albans County Court on 20/09/16 without a hearing, due to a the law firm’s template particulars being held to be ‘incoherent’, failing to comply with CPR 16.4, and ''providing no facts that could give rise to any apparent claim in law''.

42. The Court is invited to dismiss this Claim, and to allow my wasted costs which will be submitted separately and in a timely manner, depending upon whether a hearing takes place. I firmly believe that to pursue me as registered keeper when the Claimant has no such right due to their own choice of non-POFA documentation, and to submit such incoherent particulars and lacking ‘evidence’ is wholly unreasonable and vexatious.



I believe that the facts stated in this Witness Statement are true.


Signed……………………..



Dated………………………